Laudan’s error: Reasonable doubt and acquittals of guilty people
| Date | 01 July 2020 |
| Published date | 01 July 2020 |
| Author | Diego Dei Vecchi |
| DOI | 10.1177/1365712720914649 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
Laudan’s error: Reasonable
2020, Vol. 24(3) 211–232
ª The Author(s) 2020
doubt and acquittals of guilty
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DOI: 10.1177/1365712720914649
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Diego Dei Vecchi
Universitat de Girona - Campus Montilivi, carrer Universitat 12, Girona, Spain
Abstract
Proof beyond a reasonable doubt (BARD) is one of the most fundamental requirements of
American criminal law and other legal systems. Professor Larry Laudan has criticised this
requirement for several reasons. His main contention is that the BARD formula converts
evidential support into subjective confidence, and is therefore not a genuine standard of proof.
At the same time, Laudan holds that BARD produces a large number of guilty defendant’s
acquittals due to its excessive demand for evidence. The aim of this article is to show that
Laudan’s argument regarding the number of guilty defendant’s acquittals is unacceptable.
Perhaps the real ratio of false negatives to false positives were what Laudan holds them to be,
yet he fails to provide any suitable argument to support his claim, or to attribute the alleged
frequency of errors to a particular standard of proof—BARD or otherwise.
Keywords
false acquittals, Larry Laudan, proof beyond reasonable doubt, rate of error, standard of proof
Introduction
For almost two decades Larry Laudan has been directing his philosophical efforts to analyse how
decisions concerning the sufficiency of evidence are made in our criminal justice systems. Errors, their
frequency, and consequences are at the core of his worries; particularly, the kinds of errors he calls false
verdicts, to wit: verdicts whose factual premise is wrong. He distinguishes two types of false verdicts. On
the one hand, convictions against innocent people also known as false positives or false convictions. On
the other, acquittals in favour of guilty defendants also known as false negatives or false acquittals. False
negatives may emerge from a prosecutor’s decision to drop charges or can stem from a false verdict after
the trial has ended. This paper focuses on Laudan’s analysis of false negatives as a consequence of the
trial.
Corresponding author:
Diego Dei Vecchi, Universitat de Girona - Campus Montilivi, carrer Universitat 12, Girona 17003, Spain.
E-mail: deivecchidm@gmail.com
212
The International Journal of Evidence & Proof 24(3)
To completely avoid errors of every kind is incompatible with any course of action. The absolute
avoidance of false positives and false negatives entails not making any decision at all regarding citizens’
guilt. Yet, not deciding also seems to be an error: no community seems willing to resign judgment and
the punishment of crimes.1 Under these circumstances, legal systems resort to certain tools, the apparent
function of which is to satisfy two needs: first, to set the threshold of evidence for accepting certain
factual propositions as true and act as a result of this acceptance; and second, to distribute the errors
involved when deciding and acting in this way. One of the most important tools to these effects is the
standard of proof (SoP).
The phrase ‘Beyond a Reasonable Doubt’ (hereafter, BARD for short) has been accepted in many
different criminal justice systems as the proper formula to set out the SoP. The hope is that the formula
successfully sets a threshold of evidence, which, when applied, reflects a value judgment according to
which convicting an innocent person is worse than acquitting a guilty one. It is generally accepted that
BARD instantiates the so-called Blackstone’s ratio: ten false acquittals for every false conviction.
Larry Laudan has argued a great deal in favour of abandoning BARD, and gives two main reasons.
We shall call Laudan’s first claim against BARD the confusion thesis, as it sets out that BARD
unacceptably confounds epistemic reasons (the right kinds of reasons to justify acceptance of factual
propositions2) with subjective confidence. In this respect, he argues that BARD is not a genuine SoP as it
is open to several different interpretations, the majority of which lead to confusion between the degree of
proof and subjective confidence. The second claim against BARD is that it produces a very large number
of false acquittals. The argument here is twofold. On one hand, Laudan claims that BARD admits more
false acquittals than a rational-legal system would tolerate, given that (in his moral view) Blackstone’s
ratio is not only groundless, but pernicious. We shall call this claim the consequentialist thesis, since the
pernicious character of BARD lies in its potentially harmful consequences;3 however, this line of
argument is not dealt with here. On the other hand, according to Laudan, BARD not only tolerates too
many false acquittals in accordance with its underlying justification (i.e. the Blackstone ratio), the main
problem is that when BARD is actually applied, it generates many more false acquittals than even
Blackstone’s ratio tolerates. We shall call this claim the failure thesis. I will focus on this facet of
Laudan’s ‘too-many-false-acquittals’ claim.
I will argue that the confusion thesis and the failure thesis appear to be inconsistent, but the main goal
of this paper is not to make this inconsistency explicit. Laudan’s apparent inconsistency is just a
touchstone to argue that the failure thesis must be rejected. By revealing what the failure thesis requires
in order not to be inconsistent with the confusion thesis opens the door to showing that Laudan’s
reasoning in favour of the failure thesis is absolutely unacceptable. He provides no suitable ground to
support his claim, nor to attribute the outcome of the alleged high number of false negatives to a
particular SoP—BARD or otherwise. Paradoxically, some of the arguments Laudan himself develops
in favour of the confusion thesis will be helpful here.
The paper proceeds in four steps. First, I will briefly refer to the minimal conditions a standard must
satisfy in order to be an authentic standard of proof (§1). I will then recreate Laudan’s arguments to
ground the claim that BARD cannot function as an authentic SoP. This is the confusion thesis (§2).
Third, I will re-depict Laudan’s arguments to estimate the ratio between false positives and false
negatives produced in the US criminal justice system (for violent crimes) and to (partially) blame BARD
for these errors. This is his failure thesis (§3). Finally, I will demonstrate that Laudan’s argument is
highly inconsistent (§4.1) or, anyway, groundless (§4.2).
1. See Forst (2004: 22) and Whitman (2008: § 7) regarding the origins of BARD.
2. The idea of reasons of the right kind evokes Strawson (1962). More recently, Darwall (2006: §§ 8 and 9, 2013).
3. Truthfully, these harmful consequences are the result of the Blackstone ratio, which Laudan seems to assume is the ‘underlying
reason’ behind BARD. See Schauer (1991: § 4.1).
Dei Vecchi
213
BARD Under Suspicion
One common assumption in Laudan’s writings is that standards of proof are the most appropriate tools
for distributing errors in criminal cases (see Laudan, 2006, 2007, 2011, 2016; Laudan and Saunders,
2009). He thinks that the greater the exigency of proof, the lower the number of false convictions; but at
the same time, this increases the number of false acquittals. Symmetrically, the lower the standard, the
higher the number of false convictions; however, the number of false acquittals would diminish and
punishment for the guilty would increase. The distribution of error by means of a SoP consists precisely
in setting a threshold of evidence, the outcomes of which should reflect the moral judgment on the
importance of both types of errors.
In Laudan’s view, the role of the criminal law system is to accommodate the part of the social contract
regarding the correct distribution between false positives and false negatives (Laudan, 2011; Laudan and
Saunders, 2009). The confidence he has in how productive the standards of proof are in this respect
contrast with his vehement repudiation of almost every exclusionary rule (Laudan, 2006). In any case,
for a criterion to be a genuine SoP, it should be defined in epistemic terms, and be a threshold of the right
kinds of reasons, to wit: epistemic reasons, that is, evidence.
It is common to recognise that, at best, pure epistemology only provides a finite set of criteria to
determine the best among several concurrent hypotheses or explanations. This amounts to deploying an
ordinal comparison (see Harman, 1965; Lipton, 1991; Pardo and Allen, 2008; cf. Laudan, 2007).
However, ‘hard-core’ epistemology is not the appropriate discipline to evaluate the moral significance
of potential errors, nor can it provide an adequate ratio of distribution between them. In other words,
epistemology fails to provide reasons for action. Instead, it seems to be restricted to epistemic reasons
and to reducing global error (Laudan, 2006: § 5; see also Stein, 2005: 13). The thesis defending the
existence of a hard-core in epistemology is quite controversial. It supposes the possibility of a kind of
epistemic view from nowhere, which one can check objectively to see whether a set of (exclusively)
epistemic reasons are sufficient to justify a belief (see Alston, 1989 [1985]: 82–83; Montmarquet, 2007).
Therefore, there would be a purely epistemic criterion of completeness for epistemic justification.
The controversial character of this thesis lies in that it is not...
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